The pitfalls in Pitalia v NHS England

The Pitalia v NHS England [2023] EWCA Civ 657 judgment is a reminder for the correct processes to be followed when dealing with cross-border claims, highlighting that some mistakes are more serious than others and cannot be rectified by CPR r3.10.

The judgment is also a good example that it is absolutely crucial to ensure service of a claimant’s most important document is done correctly and on time, especially for claim forms that are served outside of the jurisdiction. 

Background

On 12 August 2019, solicitors for the claimants (both General Practitioners) issued a claim form against the defendant, NHS England, requesting that the Court return the claim for solicitor service. On 27 November 2019, in the absence of a sealed claim form from the Court, solicitors for the claimants served an amended, unsealed, claim form on the defendant in addition to other documents including the particulars of claim. 

The defendant's solicitors, on 10 December 2019, just two days before the deadline to serve the claim form expired, informed the claimants' solicitors that the claim form had not been correctly served. This notice was repeated two days later, where the defendant again wrote to the claimants informing them good service of the claim form had not been effected. 

Almost a month later, the sealed claim form was eventually delivered to the defendant’s solicitors on 07 January 2020, however, on 16 January 2020, the defendant’s solicitors argued that the claim form should have been served no later than 12 December 2019 and that they intended to apply to strike the claim out. 

The following day, in response, the claimants applied for an order declaring that the claim form had been validly served, either through the rectification of the claim form under CPR r3.10, the allowance of an alternative service method under CPR r6.15, or the exemption from the requirement for service under CPR r6.16.

On 21 January 2020, the defendant filed an acknowledgement of service along with a letter expressing their intent to apply to strike out the claim due to non-compliance with CPR r7.5. In the acknowledgement of service, the defendant indicated its intention to defend the entire claim but did not indicate its intention to contest the Court’s jurisdiction. 

On 24 January 2020, the defendant applied for the claim to be struck out on the grounds of non-compliance with CPR r7.5. The defendant made no reference to CPR Part 11 in its strike-out application. 

At the hearing of the parties’ applications on 27 August 2021, over 12 months after the original claim form had been issued, the District Judge rejected the claimants' applications and approved the defendant's request to strike out the claim. 

This then followed a slew of appeals spanning several years. 

On the first appeal

Seven months after the claimants’ claim was struck out, the claimants appealed against the District Judge’s order, asserting that the Judge had made a mistake by failing to recognise that the defendant had acceded to the jurisdiction, or alternatively that it had forfeited its right to contest jurisdiction by not following the correct procedure under CPR Part 11 and/or for failing to indicate its intention to contest the court’s jurisdiction on the acknowledgement of service form. 

Dismissing the appeal, HHJ Pearce, sitting in the High Court, held that the defendant's application to strike out the claim form because it was not effectively served in accordance with CPR r7.5 should be rectified using the judicial power of CPR r3.10 and treated as if it were an application made under CPR Part 11.

The claimants sought permission to appeal this decision. On 24 May 2023, Lord Justices Underhill, Bean and Lady Justice Davies heard submissions from the parties. Judgment was handed down on 09 June 2023. 

The Court of Appeal

Before the Court of Appeal, the claimants contested the decisions made in both the County and High Courts on two key grounds. 

1. Firstly, they argued, in line with the precedent set in Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806, that a defendant who fails to seek a declaration that the court does not have jurisdiction under CPR Part 11 when filing the acknowledgement of service (or within 14 days of such an acknowledgement) forfeits their ability to challenge jurisdiction through any other means.
2. Secondly, the claimants relied on the decision in Vinos & Marks & Spencer plc [2001] 3 All ER 784, in that CPR r3.10 cannot be used to rectify a procedural defect where a specific sanction, or consequence, exists for failing to comply with the procedural rule. Conversely, the claimants contended that if their failure to serve the sealed claim form on time was unable to be rectified by CPR r3.10, then the court should treat the defendant’s breach with the same procedural strictness.

Defending the appeal, NHS England made submissions distinguishing their case from Hoddinott on the grounds that the acknowledgement of service was accompanied by a covering letter that explicitly expressed the defendant's intent to apply for the claim to be struck out. Additionally, it followed this up three days later with an application to set aside service and strike out the claim. The defendant’s position was that nothing in the cases relied upon by the claimant prohibited the judge from treating the application as if it had been made under CPR Part 11 via the rectification of r3.10. 

The decision

The Court of Appeal dismissed the claimants’ application unanimously; the claim will remain struck out. 

Giving Judgment, Lord Justice Bean provided useful guidance on the court's ability to rectify procedural defects under CPR r3.10. This guidance included treating the defendant’s application to strike out as if it had been made under CPR Part 11, even though the defendant did not indicate its intention to contest the court’s jurisdiction by ticking the appropriate box on the acknowledgement of service form. 

Lord Justice Bean said that “…the failure of the Defendant's solicitors, when completing the acknowledgement of service form, to tick the box indicating an intention to contest jurisdiction is not fatal to their application for relief. Even if the box had been ticked an application would still have been required to be made within 14 days. CPR 11(1) does not say that a box on a form must be ticked: it says that an application must be made. As the judge put it, a tick in the box is neither necessary nor sufficient as a basis for challenging jurisdiction.”

The Court also took a dim view of the claimant’s argument that, if they were to be treated so harshly for having fallen foul of the rules then so too should the defendant, saying that “Errors in issuing and serving originating process are in a class of their own.” Additionally, the Court rejected the claimants’ interpretation of the principle laid out in Vinos and said that if the claimants’ interpretation was correct then “… the Rule would be deprived of its utility.”

Comment

In cases where service of claim forms is required outside of the jurisdiction, r7.5 (2) provides an additional two months on top of the usual four months. However, sometimes there is still not enough time to effect good service of a claim form within the prescribed period. 

When serving claim forms outside of the jurisdiction of England and Wales, the Foreign Process Section is arguably the best and safest way to ensure documents are served correctly. However, in the wake of Brexit, parties using the Foreign Process Section have been faced with significant delays and extended periods of time to serve claims, up to 11 months for service in some jurisdictions. This judgement serves as a stark reminder of the importance that the claim form is served on time or that applications to extend the life of a claim form are made promptly. 

The judgement also serves to remind defendants who would look to challenge the jurisdiction of the Courts, to ensure that the application follows the correct process. In this case, it was plain that the defendants intended to contest the Court’s jurisdiction, even though there was no mention of CPR Part 11 within its application. Fortunately for them, their rescue came in the form of CPR r3.10, although the real takeaway here is that some mistakes are clearly more serious than others; CPR r3.10 can serve as a lifeline for some procedural errors but not all and extra care must be taken when effecting service of a claim form.  

This insight was written by our Cross-border subject matter group, click here to learn more.